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Brutz v. Calmat Co.2/26/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. INTRODUCTION
Appellant, Axel Brutz, sued his employer, CalMat Company (CalMat), respondent, for assault and battery, after Brutz was instructed to enter a building while unaware of operating machinery near the entrance. His left leg was caught and amputated below the knee. Brutz's wife, appellant Amanda Brutz, also asserted a cause of action for loss of consortium.
CalMat moved for summary judgment on the basis that the exclusivity provisions of the Workers' Compensation Act (WCA) barred appellants' tort claims. The trial court granted the summary judgment based on its finding that Axel Brutz's injury occurred within the course and scope of employment and there was no specific intent to harm him.
Appellants contend on appeal that their tort claims are not barred by the WCA because the conduct of CalMat exceeded its role as an employer. In addition, appellants allege there is circumstantial evidence of the intent to injure necessary for a willful physical assault by the employer, which is an exception to workers' compensation exclusivity under Labor Code section 3602, subdivision (b)(1). CalMat responds that the evidence establishes its conduct is within the parameters of employment and the WCA, and that there was no intent to injure nor willful physical assault. We agree with CalMat's position and therefore affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 1998, Axel Brutz was working with the asphalt plant repair crew for CalMat, when he was instructed by supervisors to go inside the "baghouse" and assist with repairs. Upon entering, Brutz's left leg was caught in an operating floor mounted machine called a screw conveyor, resulting in amputation below the knee.
On December 2, 1999, Brutz filed a complaint for assault and battery against CalMat, and plant foreman, Rick Lyman, manager, Jerry Coffelt, and supervisor, Bobbie Plumlee. The complaint alleged that while working for CalMat, the defendants deliberately, and with specific intent to injure, ordered Brutz to go into a building knowing, or substantially certain to know, that Brutz was unfamiliar with the premises and unaware the screw conveyor was operating, unguarded and located near the entrance, and Brutz would be seriously injured. Another cause of action alleged loss of consortium by Amanda Brutz.
CalMat's answer included as an affirmative defense that the WCA is the exclusive remedy for the injuries alleged in the complaint. CalMat subsequently filed a motion for summary judgment, based on workers' compensation exclusivity. CalMat claimed the causes of action were barred under section 3602, subdivision (a) because the declarations of Lyman, Coffelt, and Plumlee established, and Brutz admitted in deposition, that other employees had been working in the "baghouse" before the accident, and there was no intent to injure as required by Soares v. City of Oakland (1992) 9 Cal.App.4th 1822. In Soares a police sergeant physically intervened between a civilian jailer and a prisoner. The appellate court affirmed that a specific intent to injure, which was not found by the jury, was necessary before the jailer could avoid the exclusive remedy provisions of section 3601, subdivision (a)(1) or section 3602, subdivision (b)(1). (Soares, at pp. 1828- 1831.)
In addition, CalMat
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